2AHIFA?

JELAI
Cauvery Award results. The government of India made
unsuccessful efforts to bring about an
agreement. Based on a report (1972) by
a fact-finding committee appointed by the
Some Questions and Answers government of India, and further studies
by an expert committee, an agreement was
The final order of the Cauvery Tribunal makes allocations of worked out in August 1976. The agree-
ment was even announced in Parliament.
Cauvery waters to the four parties to the dispute, recommends Unfortunately, the announcement was
proportionate adjustments in years of low rainfall, and proposes the premature. Tamil Nadu was then tempo-
establishment of a Cauvery Management Board for monitoring the rarily under central rule and it was felt that
implementation. There is no real basis for concern or dismay in the agreement should wait for a popularly
any of the states. The allocation numbers have no great practical elected government; and when an elected
All India Anna Dravida Munnetra
significance but what needs to be done is to arrive at an understanding Kazhagam government took over, it refused
on how water will be shared in distress years. What lies at the to ratify the understanding because it was
heart of this conflict is excessive demand by all the parties. not considered wholly satisfactory. The
prospects of a resolution of the dispute
RAMASWAMY R IYER state of Mysore. The dispute was about how which had seemed promising receded.
to allow Mysore to proceed with irrigation Thereafter, the central government con-

T
he long-awaited final order of the
Cauvery Tribunal has come at last,
and it is a matter of relief that despite
the earlier indications of differences within
the Tribunal, it is an unanimous order. The
Tribunal has redeemed itself. The aim of
this article is mainly to take note of some
of the responses to the final order that have
been reported in the media, and to clarify
the issues involved. However, it is neces-
sary first to trace very briefly the history
of the dispute and the developments that
finally resulted in the Tribunals award,
state in summary form the substance of the
award (or final order those two terms
are used interchangeably), and then pro-
ceed to discuss the responses to it. (The
account of past developments in this article
draws upon the authors earlier writings.)
The Cauvery is a system of rivers consis-
ting of the Cauvery itself and a number of
tributaries such as the Hemavati, Kabini,
Bhavani, Amaravati, and others. Karnataka
and Tamil Nadu are the principal states in
the Cauvery basin but a small part of the
basin is in Kerala, and at the very end, the
Cauvery delta includes Karaikal which is
a part of the union territory of Pondicherry
(now Puducherry).
Brief History of the Dispute
The dispute over the Cauvery has a long
history and goes back to the 19th century.
The ruling parties then were the Madras
Presidency in British India and the princely
development and to build anicuts and other
structures for this purpose on the Cauvery
and its tributaries while at the same time
protecting the interests of the Madras
Presidency. After prolonged discussions,
there was an agreement in 1892; a further
dispute; arbitration under the auspices of
the government of India; an appeal against
that arbitral award to the secretary of state in
London; and, at the instance of the secretary
of state, a resumption of mutual negotia-
tions between the two parties leading to
an agreement in 1924. The details of that
agreement will not be examined herein but
a reference to the agreement will be made
again later. The important point to note is
that it provided for the review of certain
clauses after 50 years, i e, in 1974 but the
review did not take place, nor was the
agreement either terminated or renewed.
(Whether the 1892 and 1924 agreements
continued in force and bound Tamil Nadu
and Karnataka as successors to the old
Madras Presidency and Mysore state, was
among the points of difference between the
states.) The Cauvery dispute in its present
form dates from that time (the 1970s). This
was essentially about the sharing of Cauvery
waters by the four riparians (Kerala,
Karnataka, Tamil Nadu and Puducherry).
Establishment of Tribunal
Talks between Karnataka and Tamil
Nadu went on intermittently for over two
decades from the 1970s but produced no
tinued to make efforts to settle the dispute,
and there were also discussions at the level
of the chief ministers but the dispute
remained unresolved. Eventually, in July
1986, Tamil Nadu made a formal request
to the government of India under the Inter-
State Water Disputes Act (ISWD Act)
1956 to set up a tribunal to resolve the
dispute. For various reasons the central
government did not immediately
establish a tribunal; it continued to favour
a negotiated settlement. Meanwhile, a long-
pending petition by some Tamil Nadu
farmers to the Supreme Court of India for
an assurance of irrigation water from the
Cauvery came up for a hearing, and the
Supreme Court, taking note of the failure
of negotiations and the fact that a request
from Tamil Nadu for a tribunal was pend-
ing, ordered the central government to
establish a tribunal within a month. The
government of India accordingly estab-
lished the Cauvery Waters Tribunal on
June 2, 1990.
Article 262 of the Constitution and the
ISWD Act 1956 enacted by the Parliament
under that article are important compo-
nents of Indian federalism: they provide
for the adjudication of disputes between
states over the waters of interstate rivers.
It was under that act that the Krishna,
Godavari and Narmada Tribunals had been
set up earlier, and the Cauvery Tribunal
was set up in 1990. The manner in which
that mechanism has been working, the
changes that were needed, and the

Economic and Political Weekly February 24, 2007 639

amendments to the Act made in 2002,
need not be examined over here. Suffice
it to say that in the Cauvery case, the
adjudication process has been running a
troubled course.
Nature of the Dispute
The essence of the Cauvery dispute is
a conflict of interests between a down-
stream state (Tamil Nadu) which has a long
history of irrigated agriculture and has in
the process been making substantial use
of Cauvery waters, and an upstream state
(Karnataka) which was a late starter in
irrigation development but has been mak-
ing rapid progress and has the advantage
of being an upper riparian with greater
control over the waters. Kerala (an up-
stream state with a relatively modest
demand for Cauvery waters) and
Puducherry (the lowest riparian with a
very small demand) have become parties
to this dispute. Any fair sharing would
have to provide for the legitimate interests
of all four parties. Unfortunately, driven
by the forces of party politics, the govern-
ments of the two principal contending states
have over the years generated and fostered
strong chauvinistic sentiments among the
general public, which tend to limit their
(the governments) own freedom and flexi-
bility. In both states the mention of Cauvery
waters evokes a strong emotional response.
The dispute has become (or has been made
to become) a major issue in electoral
politics. In both states, all parties tend to
take a strong stand on this issue, making
it risky for whichever party is in power to
give the impression of being weak or of
failing to protect the interests of the state.
That was the reason why this dispute
became so intractable.
Interim Order of 1991
The interim order (IO) of 1991 was passed
by the Tribunal in response to Tamil Nadus
plea that pending the completion of the
adjudication process which might take time,
there was a need for some assurance of
water for irrigation in the Cauvery basin
in the state. The IO was to the effect that
Karnataka should ensure an annual release
of 205 thousand million cubic (tmc) feet
of Cauvery waters to Tamil Nadu (of which
six tmcft should go to Puducherry); it
also laid down a detailed monthly
schedule of releases.
We need not go into the chequered history
of the IO here, as the final order, once it
640
is notified, will replace the IO. However,
three points relating to it need to be noted.
First, right from the beginning, Karnataka
was strongly resistant to the idea of imple-
menting the IO, going to the extent of
trying to nullify it through an ordinance
(which was declared unconstitutional by
the Supreme Court on a presidential ref-
erence), and at a later stage even defying
the Supreme Court and attracting charges
of contempt of court. Secondly, the IO
caused anger and dismay in Karnataka,
and popular frenzy (partly engineered by
some elements) led to tragic violence and
introduced a new strain in the relationship
between Tamils and Kannadigas. That
frenzy died down after a while, and a
fragile calm came to prevail but the final
order has now led to a similar response of
anger and dismay, though no violence has
been reported so far. We shall return to
this later. Thirdly, the question of imple-
mentation of the IO, and of release of
waters to save standing crops repeatedly
went to the Supreme Court in the 1990s.
Without going into that interesting
story, it may be noted that during the
course of that process a political crisis-
defusing body misleadingly called the
Cauvery River Authority was set up. It did
not prove to be very effective, and in any
case, it will cease to exist once the IO
expires with the coming into effect of the
final order.
The Cauvery Family
The intractable nature of the dispute, the
inability of the governments and the poli-
ticians to rise above the calculus of party
politics, and the eruption of violence in
1992 led to the feeling that some kind of
a non-official initiative was necessary for
promoting understanding and exploring
the possibility of a settlement. In the early
1990s, the late S Guhan, along with others,
tried to organise meetings on the Cauvery
issue under non-official auspices to pro-
mote understanding between the two states
at the level of the people. After a promising
beginning that initiative lost steam. Later,
when interstate dissensions at the political
level on Cauvery were at their height in
2001-02, the present writer wrote several
articles strongly urging a civil society
initiative to break the governmental log-
jam; as a first step, he convened a small
and informal meeting at Bangalore at the
house of the former chief justice of
Karnataka justice Nittor Srinivasa Rao
(now, alas, no more). That was a meeting
Economic and Political Weekly February 24, 2007
of intellectuals; what was needed was a
meeting of farmers. The Madras Institute
of Development Studies, with the old
Guhan legacy in mind, were of a similar
view, and S Janakarajan of that institution
undertook the exercise of bringing the
farmers of Tamil Nadu and Karnataka (the
two principal contending states) together.
This has had a measure of success. The
very first meeting of around 100 farmers
from both states (Chennai, April 2003),
with some academics, engineers, NGOs,
and media people associated, was
characterised by a spirit of warmth, friend-
liness and fraternity, and a concept of
Cauvery Family emerged. There was a
general recognition that the farmers of the
Cauvery Family must live together in
harmony and constructive cooperation, and
must learn to make the necessary adjust-
ments. That spirit has continued to prevail
in several further meetings that have since
taken place in locations in both states. The
farmers from either state have visited areas
in the other state and have developed a
better mutual understanding of problems
and needs. Some mutual misperceptions
have been partially if not wholly removed.
While a sharing agreement or a formula
for years of distress did not emerge out of
the process, the warmth of the family
relationship that has been established and
the spirit of goodwill and harmony that
came to prevail among the farmers from
the two states were very remarkable. This
was a considerable achievement but we
must now hope that the Family will be
able to withstand the strains arising from
the responses to the final order and con-
tinue to play a useful role.
Final Order
In its final order, the tribunal has pro-
ceeded on the basis of an annual availabil-
ity of 740 tmcft in the Cauvery on a 50
per cent dependability basis (this will be
explained later). It has allocated this as
follows: Tamil Nadu 419, Karnataka 270,
Kerala 30 and Puducherry 7. That leaves
14 tmcft, out of which 10 is meant for
environmental protection, and four repre-
sents the inevitable escapages into the
sea. Karnataka has to release 192 tmcft
from Billigundulu out of which 10 tmcft
are meant for environmental purposes.
This means that 182 tmcft are meant for
Tamil Nadu, which, together with the
25 tmcft that becomes available between
Billigundulu and Mettur adds up to an
availability of 207 tmcft at Mettur. (The

difference between this and the total
allocation of 419 to Tamil Nadu represents
the resource-generation within the state.)
For years of low rainfall, the award en-
visages a proportionate adjustment of the
allocations. The award also recommends
the establishment of a Cauvery Manage-
ment Board which will monitor the monthly
schedules and (with its committees) func-
tion as a regulatory authority.
(Incidentally, in fixing the release from
Karnataka at 192, the award takes into
account 182 tmcft for Tamil Nadu plus 10
for environmental purposes, but forgets
four for escapages into the sea: the release
ex-Karnataka should have been 196 tmcft.)
Engineers differ on the question whether
50 per cent or 75 per cent is the better
dependability principle. A 50 per cent
(or 75 per cent) dependable flow means
that the flows are expected to be equal to
or higher than that number in 50 (or 75)
years out of 100. The allocation has to be
based on some numbers, and it does not
really matter whether the 50 per cent or
75 per cent basis is adopted, so long as
there is a provision for dealing with the
contingency of the availability falling
below the adopted number.
Responses to the Award
In Karnataka there seems to be deep
dissatisfaction in all quarters with the
Economic and Political Weekly February 24, 2007
award, which is considered to be unfair and
unjust; some have even described it as
biased. There has been some talk of reject-
ing the award. In Tamil Nadu, while the
award seems to have been generally wel-
comed, there are dissenting voices. Apart
from other parties, even the Dravida
Munnetra Kazhagam (DMK) government
which initially said good things about the
award now finds issues that need clari- against the award of the Tribunal to the
fication. In Kerala, the allocation made to
that state is considered inadequate. There
has been talk of review petitions in all the
states (except perhaps Puducherry). Some
have urged a petition to the Supreme Court.
The points that arise from all this are
examined below in the form of questions
and answers.
Q 1. Is there a question of accepting or
rejecting the award?
A. No, that choice is not legally available.
The award is a judicial verdict which is
final and binding, and in terms of the 2002
amendment to the ISWD Act 1956, it has
the force of an order of the Supreme Court.
Q 2. Is there scope for a review petition?
A. Strictly speaking, the ISWD Act does
not provide for a review petition. How-
ever, if (as the Act says) the decision of
the Tribunal has the force of an order of
the Supreme Court, then a review petition
should be possible, as in the case of orders
of the Supreme Court. Be that as it may,
the ISWD Act does provide for a reference
back to the Tribunal within a period of
three months if the central government or
any of the state governments feels that
anything in the Tribunals decision re-
quires explanation or that guidance is
needed upon any point not originally re-
ferred to the Tribunal. That is not a
provision for a review but the state
governments are not likely to be constrained
by the wording. They are bound to raise
all their doubts, dissatisfactions and griev-
ances, virtually converting the references
into review petitions. The Tribunal will
undoubtedly give due consideration to such
references. One must hope that it will give
its response to such a reference promptly,
and that the government of India will notify
the Tribunals decisions in the gazette
without any loss of time.
Q 3. Is an approach to the Supreme Court
available?
A. Again, strictly speaking the answer is
no. The ISWD Act 1956, under a spe-
cific provision of Article 262, bars the
jurisdiction of the courts (including the
Supreme Court) once a dispute has been
referred to a Tribunal set up under the Act.
This writer has been arguing for years that
a single non-appealable decision might
leave one or more parties to the dispute
dissatisfied (as has now happened), and
that a provision should be made for an
appeal to the Supreme Court; but that
suggestion has not received any attention,
and the present position (as understood by
this writer) is that there can be no appeal
Supreme Court. Nevertheless, the aggrie-
ved parties cannot be prevented from going
to the Supreme Court. If they do, it would
be for the Supreme Court to decide whether
to entertain the petition or not. Having
regard to the explicit provisions of Article
262 of the Constitution and the ISWD Act,
it is difficult to see how such a petition
can be entertained, but some legal experts
think that there are other constitutional
provisions under which the Supreme Court
may entertain despite the bar of jurisdic-
tion. This writer can offer no opinion on
that question.
Q 4. Is there any merit in the complaint of
injustice and bias made by many in
Karnataka?
A. That complaint springs from the sense
of historical injustice that stands firmly
entrenched in the Karnataka psyche. It has
for long been felt in that state that the 1892
and 1924 agreements between the Madras
Presidency and the princely state of Mysore
were unfair impositions by the former on
641
the latter; and whether it was right or
wrong, it was an understandable view.
Essentially, the 1924 agreement permitted
the Krishnaraja Sagar (KRS) project (and
in a sense, the Mettur project) to proceed
but imposed restrictions on the extension
of irrigated areas in either state, and it
was in relation to that restriction that the
sense of unfairness came to prevail in
Karnataka. However, that grievance,
assuming that it was justified at one time,
ceased to be relevant a long time ago.
Both states expanded their irrigated agri-
culture beyond the prescribed limits, and
Karnataka went ahead and built not only
the KRS project but also the Kabini,
Hemavati and other reservoirs. This gave
Karnataka control over Cauvery waters,
thus completely changing the earlier
situation. Thereafter, there was no longer
any basis for grievance on the part of that
state: Tamil Nadu became the aggrieved
party (again, whether with just cause or
not), with a sense of insecurity with
regard to Cauvery waters. That is merely
a statement of the historical background;
this writer takes no position on it.
Coming back to the present, both Tamil
Nadu and Karnataka (not to mention
Kerala and Puducherry) were disputants
before the Tribunal: neither was more
powerful than the other or able to prevail
against the other. The Tribunal was a
judicial body acting under an Act of
Parliament that in turn derived its autho-
rity from an article of the Constitution,
and it was a body consisting of three
judges (none of them from any of the
contending states). There was no reason
why the judges should favour one party
to the dispute, go against another, or why
they (a body appointed precisely to do
justice) should render injustice. The
charge of bias or injustice simply cannot
be sustained. The Tribunals final order is
a judicial determination and must be
ipso facto presumed to be fair to all parties.
During the inordinately long period of the
adjudication process, all the four state
governments took a great deal of trouble
over the presentation of their respective
cases, consulted experts of high standing,
engaged eminent counsel, and submitted
massive documentation. It is not open to
any of them to say that its case has failed
to receive a proper hearing. However,
judges can of course make mistakes, and
if they do so, their decision may well
appear unjust to one or more parties. This
writer would interpret the Karnataka
complaint of injustice as implying that in
the view of many in that state, the Tribunal
has given a wrong decision that impinges
adversely on that state. If so, a remedy is
available: as mentioned earlier, a petition
can be made to the Tribunal within three
months.
Q 5. Are the protests in Karnataka proper?
A. Any judgment of the Supreme Court
can be criticised. It follows that the
Tribunals final order can also be criticised.
However, this must be done in a manner
consistent with respect for the rule of law,
the Constitution and the spirit of feder-
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in Karnataka fill one with disquiet. Calls
for a rejection of the award, a bandh
bringing all activity to a standstill, etc, are
actions of doubtful propriety. Protests and
public meetings are of course in order but
not the disruption of the normal life of the
people; that is ipso facto an act of violence,
even if the bandh is peaceful in a nomi-
nal sense. A call has been made for a ban
on Tamil films. Why? Karnatakas quarrel
is surely with the Tribunals decision, not
with the Tamil Nadu government which
was merely another party to the dispute,
much less with the Tamils or their lan-
guage. Unfortunately, instead of provid-
ing guidance to the people, leaders tend
to follow popular sentiment, doubtless on
political considerations. The former chief
minister Krishna did this earlier, going to
the extent of defying the Supreme Court,
and now a Karnataka minister whose car
is stopped in Mandya comes out and joins
the protest instead of giving the right advice
to the protesters. Even more questionable
is the action of Deve Gowda, a former
prime minister of India, in declaring the
Tribunals award to be arbitrary and
blatantly one-sided and discriminatory.
Having thus added fuel to the fire instead
of dousing it, he expresses grave concern
about the tendency to play politics over
natural resources, about the danger to
national integration, and about erosion
in the credibility of interstate arbitration
bodies and tribunals; one hopes that the
irony of this sanctimonious statement is
not lost on the readers. It was also quite
strange to see the lawyers of Karnataka,
who presumably know their law and
the Constitution of India, taking to the
streets and boycotting the courts. Was there
no senior or wise member of their
profession to tell them that what they
were doing was grossly improper? It is
fair to say that similar things might
have happened in Tamil Nadu too, if
there had been greater dissatisfaction
with the award in that state. Already,
Jayalalithaa has made some irresponsible
statements.
Incidentally, by what process of exami-
nation and analysis did Deve Gowda or the
lawyers come to the conclusion that the
award is unjust to Karnataka? (A similar
question can be addressed to Jayalalithaa
in relation to Tamil Nadu.) It seems very
likely that these are off-the-cuff opinions,
or opinions taken over from others, or pre-
determined views. Right from the begin-
ning, the Karnataka government and poli-
ticians were against adjudication, did not
Economic and Political Weekly February 24, 2007
expect good results from it, were prepared
to find injustice in the award, and now
think that they have found it. As for Tamil
Nadu, many in the state tend to recall the
time when that state was the predominant
user of Cauvery waters; the allocation was
bound to be lower, and they find this hard
to accept. Unless the two states rid them-
selves of the burden of the past, they are
unlikely to be able to take a reasonable
view of the matter.
Q 6. Is there any real basis for concern or
dismay in any of the states?
A. This writer would venture to answer
that question with a no. In his maverick
view, the allocation numbers (419 tmcft
for Tamil Nadu, 270 for Karnataka, 30 for
Kerala and seven for Puducherry) have no
great practical significance. That may
seem a startling statement and needs to be
explained.
In the first place, the allocations for the
two upper riparians are entirely notional.
Nobody releases water to Kerala; it falls
from the skies. The same is true of
Karnataka, except for the inflow (natural,
not released by Kerala) from the Kabini and becoming rigid and unalterable,
river. Similarly, a good part of the allo- distress-sharing will now be a practical
cation to Tamil Nadu is really natures
bounty. The only figures of any opera-
tional significance are what Karnataka
has to release to Tamil Nadu, and
what the latter has to release to Karaikal
(Puducherry). (Incidentally, it must be
noted that these states have acquired the
power to release or give water only business of protests, bandhs, etc, is quite
by first stopping the natural flow behind
dams.)
Secondly, the level of utilisation in Kerala
in the 1970s had been determined as five
tmcft. It might have gone up since then but
it will be a long time before it reaches the
level of the 30 tmcft allocated to the state.
For the foreseeable future, Kerala can
proceed to step up its water use without
affecting the availability to Tamil Nadu or
Karnataka significantly. If and when it
approaches the level of 30 tmcft (at some
distant future date), it can ask for a lifting
of the limit on its use, either by an inter-
state agreement facilitated by the proposed
Cauvery Management Board or through a
new tribunal.
As for Karnataka, what is important is
not the allocation of 270 tmcft to it but the
fact that it has to release 192 tmcft to Tamil
Nadu. In most years, the flow from
Karnataka to Tamil Nadu will be higher
than that figure. It is only in a year of low
rainfall that difficulties may be experi-
enced. In other words, even the release of
192 tmcft (which was earlier described as
of operational significance) really means
nothing in a normal year: the crucial point
and this is what has been causing all the
trouble is the sharing of water in a distress
year. Here the Tribunal has offered no
formula but has stated the principle of
proportionate adjustment and has left the
detailed management of this to the pro-
posed Cauvery Management Board and its
committees.
What needs to be done urgently is to
arrive at an understanding on how water
will be shared in distress years. (It is only
in the context of determining the pro-
portionate adjustment in a difficult year
that the allocation numbers have a role to
play.) This should be the first task of
the Cauvery Management Board as soon
as it is constituted. If the Tribunal can be
faulted on any count, it is on its failure
to work out a detailed, technical, opera-
tional formula for water-sharing in distress
years. However, even that may be a
blessing in disguise. Instead of being
frozen as a part of a judicial determination
matter to be worked out by the Cauvery
Management Board with which the
state governments will have a working
relationship.
If we look at the matter in this manner,
there is no need at all for any anger, gnashing
of teeth or beating of breasts. The entire
unnecessary.
Q 7. Finally, what lies at the heart of this
conflict?
A. Each state projects a figure of what it
thinks it needs, and the sum of those figures
far exceeds the availability of water in the
river; hence the conflict. However, do
the states really need all that water?
The projections of future needs are based
on current patterns of use, with some
modest adjustments for improvements but
radical changes are needed. It is a well-
established fact that the current pattern
of water use in all uses, and particularly
in agriculture is highly uneconomical
and even wasteful. Many scholars,
committees and commissions have said
this. If water is better managed in all the
states, there would be no conflict. That is
the real answer to this problem. So long
as that wisdom does not dawn on us, there
can be no hope of avoiding or resolving
conflicts. -29
Email: ramaswam@vsnl.com
643